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Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 800 - 818)



Lord Waddington

  800. But you are not seriously saying that Parliament is on all fours with the Jockey Club or a trade union?

  A. No, of course not. I am saying that disciplinary matters are a category of things which the courts will, in many cases, as with universities too, think should be left to universities.

  801. But the courts themselves derive their very authority from the Queen in Parliament.

  A. Of course. That is true, but we are not talking about Parliament exercising a disciplinary authority; we are talking about either House of Parliament. That is why the courts have said in the past that neither House can on its own change the law. Although one cannot easily imagine such cases, when one thinks of the Bradlaugh case, for example, the issue there was that the House was misconstruing, allegedly, a statute which entitled Bradlaugh to take the oath. If there are statutes which apply inside the House or if there are legislative conditions which the House has ignored, then in the last resort the courts presumably will look at them. They will allow the House to interpret the statute within the laws of Parliament unless some egregious error is in their view made. I would have thought that would be the principle. Of course one cannot think of easy cases because one has to think of the House behaving in an absurd manner and denying somebody a clear statutory right.

  802. I am not sure it is an absurd manner. What if a Committee of the House of Commons summonses a Member before it and says, "A serious allegation has been made about your behaviour and we are now determined to get to the bottom of what actually happened"? Without affording the fellow the right to be represented by anybody, they carry out a sort of inquisition and, at the end, issue a statement saying, "Bloggs MP behaved appallingly". That has actually happened. In those circumstances surely there is a clear breach of Article 6 of the European Convention of Human rights. Although the Human Rights Bill says that Parliament is not a public authority, presumably an MP who had been treated in that way could go direct to Strasbourg for a remedy, could he not, whatever we say in this House?

  A. That was one of the sorts of cases I had in mind when I said that the non-reviewability of the internal proceedings might be more complex in constitutional cases where somebody invoked the European Convention. One can think of other things. Committees demanding names of Freemasons or something might be thought conceivably by somebody subjected to that demand to be something that went against his rights under the human rights legislation or the Convention. Now we have a Bill of Rights, there might be other procedural matters involving resolutions of the House. Someone now might say under the new Human Rights Bill that a remedial resolution introduced by a minister into the House did not in fact do the job that the court, in making a declaration of incompatibility, had said that it should do and wanted to contest the resolution. There are a number of constitutional issues that you can think of as arising but these are wider issues than the disciplinary point. I think on the disciplinary point the courts would not want to get into it and, except in cases of the kind you have mentioned, would not see any constitutional ground for entering into it.

  803. I am not for one moment saying that I have come to the view that, when a Committee of the House exercises some sort of disciplinary role or when it punishes somebody for contempt, there must be an appeal to a higher court, but are we not now in such deep water that we should seriously consider how we can cut down rather than increase the number of cases when Parliament exercises that sort of authority, either over Members or over individuals, because it is getting more and more likely that, if the House of Commons does start getting a little vigorous in its punishment of people, for contempt for instance, then we are going to finish up with cases finding their way to Strasbourg. Is that right?

  A. Yes. I draw a distinction between control of its own Members and enforcing punishment for contempt over non-Members. It is in relation to the second that I think there is a case for transfer and using the judiciary more, but over the Houses' own Members I think that the House ought to be the primary enforcer of that discipline. When people become Members, they know what the conditions are and the House is I think entitled to enforce its own discipline, subject to judicial review in the extreme case, but I would not want routine transfer of disciplinary cases to any court outside of Parliament.

Sir Patrick Cormack

  804. Could I ask a little bit more along the lines of a question I put to you a minute or two ago, Dr Marshall? I understood you to be saying that you would look for the same supervisory jurisdiction in the courts that exists in the case of the professions—say, the General Medical Council. If that is not right, please correct me but, if it is right, that is really denying any point of principle that separates Parliament from that field of judicial supervision. Do you think that is right? I do not quite understand what you were saying a moment or two ago, that you would not wish to see any right of regular transfer, as you put it, from the House of Commons in a disciplinary role to the courts. I am not quite clear where you stand on this, but I am sure it is my fault.

  A. I come to this because 30 years ago I helped to put in some evidence to an earlier select committee on parliamentary privilege saying that the whole contempt jurisdiction of the House should be transferred in cases where the House wants to punish someone for a contempt against the House. We took the view and tried to argue that that should be transferred to the courts routinely, along the lines of the precedent for disputed election petitions in 1868. I now think that that is too general. First of all, it should be an opportunity which the House had. If I had a statute to transfer jurisdiction to the courts, I would make it one which the House could utilise in cases where it thought it was useful to have a judicial arbitration against outsiders, and there could be such cases. I would expect that that would work by the House asking the Attorney General to refer a contempt case to a court as happens in the United States in the federal courts. In fact, it happens almost everywhere other than here because the House is unique in taking the view that it does about contempt. I think that over its own Members one would not want to see that happening. One would want to have the House exercising its powers over its own Members in the first instance. If they then wish to say, "There is a constitutional or legal point which involves judicial review and I want to invoke that", whether under the Convention or the ordinary law, that would have to happen, but I simply want to distinguish between enforcing powers over the House's own Members and enforcing contempt powers over outsiders.

  805. I would not wish to begin to challenge your very properly renowned academic expertise and knowledge of these things, but do you really think that change along these lines is actually necessary? Do you really think it is going to make the situation better?

  A. I do not know. It is one of these points that I mentioned at the beginning. I think that there are priorities for consideration of privilege and I am quite clear that this is not one of the major priorities. If you start thinking about exclusive cognisance and the powers of the House, it is a matter of principle which is worth consideration, but I take the view, though I think it is justifiable in principle, that I would not be at all distressed if this Committee thought that there were better things to do than legislate in this area. My answer is yes, I think it is justifiable in principle but, in the second place, it is not a priority.

  806. There is not a great wrong that needs putting right?

  A. It is quite different from 1967. In 1967, a lot of people were worked up about the House's exercise of its contempt powers over newspapers and all kinds of things, the Suez cases and the John Junor case, dragging people to the bar of the House. Since 1967, nothing of that kind has happened and no one could say that the House has abused its contempt power, so there is no urgent case for acting on a matter of principle to take it away. I put this into the class of matters of principle which academics like to think about but I would not urge the Committee to legislate in this particular way.

Lord Waddington

  807. Doctor Marshall, I should tell you that this Committee has not come to a conclusion even that bribery cases should be tried in the criminal courts. It has been suggested by some Members of this Committee that that is just not a desirable way to go forward. Surely, the arguments that you have advanced are the very strongest arguments in favour of dealing with bribery cases in the courts, because if indeed you were to try and punish within Parliament somebody for offering a bribe to a Member, then as sure as eggs are eggs you would be in trouble under the European Convention if you did not give that person a right of appeal to a properly constituted court. Is that not right?

  A. Yes, I think that is a different matter. I was confining my views to the House's enforcement of its contempt powers against outsiders.

  Lord Waddington: I appreciate that, but I am jogging back now to what we had earlier said about bribery. The arguments that you have advanced, whatever force they may have in the area of contempt, are really conclusive arguments for leaving it to the criminal courts rather than Parliament to deal with cases of bribery of Members.

  Sir Patrick Cormack: They may or they may not be.

Lord Waddington

  808. Is that not right?

  A. Yes. I think it is a matter of priority. There is a tangle to be cleared up that the courts in this country, in Australia and in New Zealand have made of the indirect consequences of Article IX and there is a tangle about bribery. Those two things I think are matters of practical concern that need to be cleared up. The abolition of absolute privilege and the transfer of the contempt jurisdiction to the courts are matters of principle which I do not put on the same level of urgency. That is all I am saying.

Sir Patrick Cormack

  809. There are certain specifics that need clarification?

  A. Yes.


  810. You have given us food for thought when we consider whether the position at the moment regarding the disciplining of Members and the exercise of penal powers over non-Members is satisfactory. It is a matter we will have to consider. If it is not, what should be done about it? As I understand it, Dr Marshall, you have more than once indicated that you would not regard the transfer of jurisdiction, certainly in the latter of those cases—I am not sure about the former—in relation to judicial review to the courts as your top priority. What are your top priorities, as you see parliamentary privilege at the moment?

  A. I think they are what I mentioned just at this moment, namely clearing up the ambiguity. It is quite clear that Article IX as it stands, massively respectable as it is as a constitutional landmark, has become hopelessly unclear. I think that is a priority. It is quite clear that the phrase "any place out of Parliament", for example, cannot be given the meaning that it obviously seems to have. It does not include the newspapers; it does not seem to include tribunals of inquiry. Nobody said at the time of the Scott Inquiry that there would be an inquisition of Members and a questioning of what had gone on in Parliament. There was some quite fierce questioning of ministers and Members involved in parliamentary proceedings. Nobody thought that was an infringement of the Bill of Rights, so the literal wording of the Bill of Rights needs to be brought into some form of clarity. The difference between its direct application to prevent the penalising of Members for what they have said in the House has to be distinguished from its indirect application where evidence of proceedings is needed in cases that have nothing to do with that purpose of protecting Members' speeches in the House. I think those are the matters, clearing up that tangle about the direct and indirect application of Article IX and having some clear understanding of what the ambit and scope of parliamentary proceedings is, and a consideration of whether parliamentary proceedings could not be widened to take in more of the functions of Members, rather than confining it simply to the business of the House—as happens in some other countries.

Sir Patrick Cormack

  811. You deal really with the first point in your very helpful memorandum, do you not, when you say, "Whatever Article IX may have been intended to mean in 1689 ...", but can you help me as to what your own opinion is as to what was meant in 1689? The language we know, but do you think the authors would have been surprised by the comprehensive grasp that subsequent decisions have given to it? Do you think they may never have intended it to be quite as comprehensive, even then, as it has subsequently been interpreted?

  A. I think history suggests that it was enacted, as you can see from the preamble of the 1689 Bill, because the King had gone about prosecuting Members for their speeches. All the argument that goes on in the United States about the purpose of the Bill of Rights and the Speech and Debate clause under the Constitution of the United States, which is modelled on it, suggests that it was a protection for the legislature against the executive, and against particularly criminal actions penalising them for speeches. I think that was the primary intention. The implications for all kinds of other actions that have arisen over the last 200 years I think were not contemplated at all. If you look at discussion of this in the United States, you find a clear inclination of constitutional lawyers in the United States to draw a distinction between criminal proceedings by the executive on separation of powers grounds, protecting the legislature against the executive, and civil actions which they think raise the constitutional issues of citizens' rights and should not be sealed off from the courts. In history, you can get a clear inclination about the primary intention. Of course, that is the interpretation that was given to the Bill of Rights in the Australian case of Murphy before Prebble and the Australian Parliamentary Proceedings Act 1987. In Murphy, Mr Justice Hunt said that what the Bill of Rights was intended to prevent was the making of proceedings in Parliament the direct objective of criminal or civil proceedings. It was not to prevent evidence of matters in Parliament being given in other sorts of cases involving events outside Parliament. That I think was a quite sensible interpretation of the Bill of Rights, as was the exclusion in Pepper v Hart of the press and so on from counting as places outside Parliament. In Australia, that was rejected by the Federal Parliament and it was rejected by the Judicial Committee of the Privy Council in Prebble. I think my view is that those interpretations have gone against the original intention and have also gone against a sensible 20th century interpretation of the ambit of Article IX. Those are the matters that raise practical issues needing urgent consideration.

Mr Michie

  812. Would this mean that, instead of what we have at the present moment, if someone believes a Member, for example, is taking a bribe or is corrupt, instead of the Member writing to the Standards and Privileges Committee sitting at the moment, they would write or give their information to the Crown Prosecution Service?

  A. Sorry; I am not quite sure who is being considered.

  813. I am thinking about cases in the past where problems have been brought to light by the press or a Member and the Member will write to what was the Privileges Committee for consideration, alleging bribery.

  A. By another Member?

  814. Yes, in which case are you suggesting that we have a slight change in the law so that the Member who is bringing the allegation actually writes to and communicates with the Crown Prosecution Service rather than the House?

  A. If a Member wanted to make an accusation of bribery, I suppose that it would be the same as making an accusation against any other person. It would not be, I suppose, ruled out that you could ask a committee of the House to consider it first and give a prima facie view to confirm your view, but I suppose anyone can attempt to lay an information if they take the view that it is necessary to do so. I would have thought the natural thing, if it is a matter raised by Members against other Members, would be to refer it to the Commissioner for Standards in the first instance or something of that kind.

Lord Merlyn-Rees

  815. If I may take this further, there is a mood among some commentators and the present Home Secretary that bribery should be dealt with in the courts and not dealt with by Parliament. If we were to go down that line, the Crown Prosecution Service and the DPP would have to be involved at some stage?

  A. Yes.

  816. It is that point I would like to pick up. What are we talking about when we talk about bribery? Someone like yourself, with your long involvement in this matter, far longer than many of us round this table, may be able to tell us: there is concern about bribery. Why? Is there a lot of it going on?

  A. I think it would be impossible to give an empirical or sociological answer about the incidence of bribery. It worried people in the late 19th century. That is why the 1889 Act, the 1906 Act and the 1916 Act were passed. There were some clear worries about corruption in public life at that time. I would not myself have thought that, apart from a few spectacular examples, one could say that bribery was rifer now than it was 50 years ago, but I am not a sociologist and I am not at all certain whether this would be true or not. I do not know how one would ascertain this. In the nature of bribery, it is clandestine and one does not know what the general level of it is.

  817. Someone like me believes there is precious little of it. I have reached the point of going around saying to people, "Do you know of any bribery that is around?".

  A. I think it may depend on the circles one moves in. I have had the same experience as you.


  818. Dr Marshall, you have given us a great deal to think about, both in your evidence this morning and in your written memorandum. If there is anything you would like to mention now that we have not touched upon, anything that, as you said earlier, you have had second thoughts about, and you would like to mention, please do. If you prefer instead to let us have any further thoughts of yours in writing, please follow that course. It is entirely as you wish.

  A. There is just one small point. At the end of my evidence, not because I was a great expert on it, I looked at the standard works on French immunity of Members and I was rather struck—this is what I was saying earlier—by the greater ambit of the protection given to the MP. Although the French do not claim any general power of contempt and so on, they do give a rather wider protection. If one wanted a wider definition of proceeding, one might look at that kind of definition which says it is to do with the function of the Member even when he is en mission, which I take to mean that, if he is outside Parliament but carrying out some function of a Member, that would not be protected by proceedings in Parliament here, but there is quite a case for saying that one should attach privilege—in my view, qualified privilege—to a wider range of activities when Members of Parliament are en mission or carrying out some function. The Strauss case was one such example where it would be perfectly reasonable to include that. It is worthwhile looking at both the American and French definitions of the breadth of immunity of deputies and Congressmen if one is thinking of a rather broader spread for the notion of proceedings in Parliament. Thank you.

  Chairman: Dr Marshall, thank you very much for your evidence.

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Prepared 9 April 1999